Prosecution strategy backfires in case of trans woman’s death

Mark Lewis had been indicted on a manslaughter charge in the drowning death of Kenne McFadden, a transgender woman, in April 2017. Last week, a judge found that his actions that night did not amount to criminal conduct.

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When Bexar County prosecutors presented evidence in a manslaughter case last week during a probation revocation hearing, they had a chance to make the accused serve time in connection with the death last year of a transgender woman.

But their strategy backfired. The judge ruled in the defense’s favor, and now Mark Daniel Lewis will not stand trial at all for Kenne McFadden’s death due to double jeopardy provisions, prosecutors said.

The circumstances of the case, which legal experts say could have been avoided, have drawn the ire of San Antonio’s transgender community. On Tuesday, activists plan to hold a noon press conference in front of the Bexar County Courthouse and a rally later in the day at Crockett Park to “demand justice for Kenne.” Activists have questioned the oversight of the case by Bexar County District Attorney Nico LaHood, who lost his bid for a second term last week.

On Thursday, prosecutors attempted to prove that Lewis, 20, had violated his probation when he was accused of committing an unrelated crime of manslaughter. According to testimony, Lewis admitted to pushing McFadden, 26, into the River Walk in April, where her body was found two days later. The hearing, which resembled a bench trial, required the judge to consider a preponderance of the evidence — a lower standard than guilt beyond a reasonable doubt — should have been easier than a full-blown criminal trial.

Lewis had been on probation for failing to register as a sex offender, following a conviction for prohibited sexual conduct against a 13-year-old girl when he was a juvenile, records indicate. He was indicted for manslaughter in relation to McFadden’s death in November.

In an emailed statement, the DA’s office declined to comment on how prosecutors Jason Goss and Nicole Phillips handled the case. Prosecutors had been reviewing the case for months prior to the indictment.

“Kenneth ‘Kenne’ McFadden’s death is a tragedy. Our office fought for justice for Kenne and her family members and sought to hold Mark Daniel Lewis accountable for his actions,” the statement said. “Our prosecutors presented compelling evidence that we believed showed that Mark Daniel Lewis was guilty of Manslaughter. Unfortunately, the presiding judge disagreed and found the allegation that Lewis violated his probation ‘not true.’ Due to the lower standard of proof in a Motion to Revoke Probation hearing, our office is legally unable to proceed with a full criminal trial against Mark Daniel Lewis. Our thoughts and prayers remain with Kenne and her family.”

Daniel Rodriguez, Lewis’ court-appointed attorney, said Judge Joey Contreras reached the right conclusion in ruling that his client’s actions did not amount to criminal conduct, adding that he thought the outcome would have been the same had it gone before a jury.

In a videotaped interview with a detective that was played in court, Lewis claimed that McFadden, who was heavily intoxicated, had groped his buttocks, leading to him push her off of him and into the river. Lewis said he was acting in self defense and did not intend for her to go into the water. In order to prove manslaughter, prosecutors would have had to show reckless intent on Lewis’ part.

“What the state focused on was that McFadden fell into the water and drowned,” Rodriguez said. “They were more focused on the end result and not on what my client actually did, and what my client actually did was push a person off of him who was touching him in an offensive manner.”

Legal experts said proving a new law violation during a probation hearing is not unusual. What is unusual, said Inger Chandler, an attorney in the Houston area who previously worked in the Harris County District Attorney Office’s conviction integrity unit, is the fact that dinging Lewis on a probation violation would result in a far lighter sentence than proving manslaughter. In Texas, a manslaughter conviction carries a sentence of 2 to 20 years in state prison, while the probation revocation Lewis faced carried a maximum of 2 years in state jail, according to the district clerk’s office. Prosecutors said last week they could have still proceeded to trial had the judge ruled in their favor.

Chandler said prosecutors can choose to try a case this way for any number of reasons, one being that it makes it easier to prove a weak case because the standard of proof is lower.

“Sometimes as a prosecutor, I was one for 14 years, sometimes your best strategy and what you think is your best strategy ends up backfiring on you,” she said. “That’s tough for everyone, frankly.”

Sandra Guerra Thompson, director of the Criminal Justice Institute at the University of Houston Law Center, said the judge’s ruling reflects that Lewis’ self-defense claim prevailed.

“If they put on their whole case and couldn’t meet this standard, then they were not likely to fare any better going to trial on a homicide charge,” she said.

Prosecutors made the proceedings murky when they “married” the probation case with the homicide case, said Philip Hilder, a former federal prosecutor who now practices as a criminal defense attorney in Houston. They “botched” the manslaughter case, he said, by presenting the entirety of the evidence in the hearing, rather than sticking to a narrow set of relevant facts that could have secured a probation revocation.

“They put themselves in this situation. They didn’t have to. They didn’t have to present all the evidence,” Hilder said. “They could have accomplished their goal by succinctly presenting the evidence that was relevant to the revocation rather than a shotgun approach. And now they’re suffering the consequences for trying to throw in too much that was not necessary.”

Upon hearing the judge’s decision last week, McFadden’s mother, Joann McFadden, collapsed in the courtroom and was transported to the hospital by paramedics. The next day, she said she had been overcome by the stress of the moment. She was struggling to reconcile the case’s evidence, which included two admissions from Lewis that he had pushed McFadden, with the case’s outcome, she said.

Lauren Caruba covers health care and medicine at the Express-News, where she has been a staff writer since October 2016.

She previously covered education, writing about state oversight of San Antonio schools, controversy over a high school's Confederate namesake and the hazing and sexual assault arrests of 13 student-athletes at La Vernia ISD. She also authored "Life in Transition," a series documenting the lives of transgender San Antonians and the divisive "bathroom bill" debate, for which she was recognized as a 2018 local reporting finalist in the Livingston Awards for Young Journalists.

Lauren previously was an investigative fellow at the Houston Chronicle, where she worked with documents and databases and supported investigative projects. While there she wrote "55 Minutes," a three-part serial narrative about a mass shooting in a west Houston neighborhood, was a member of an investigative team probing conditions at the Harris County Jail, and delved into the history of Houston's aging flood control dams.

Lauren graduated from Northwestern University’s Medill School of Journalism in 2015.